California Civil Jury Instructions (CACI) (2017)

1501. Wrongful Use of Civil Proceedings

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1501.Wrongful Use of Civil Proceedings
[Name of plaintiff] claims that [name of defendant] wrongfully brought a
lawsuit against [him/her/it]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] was actively involved in bringing [or
continuing] the lawsuit;
[2. That the lawsuit ended in [name of plaintiff]’s favor;]
[3. That no reasonable person in [name of defendant]’s circumstances
would have believed that there were reasonable grounds to bring
the lawsuit against [name of plaintiff];]
4. That [name of defendant] acted primarily for a purpose other
than succeeding on the merits of the claim;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[The law requires that the trial judge, rather than the jury, decide if
[name of plaintiff] has proven element 2 above, whether the earlier
lawsuit ended in [his/her/its] favor. But before I can do so, you must
decide whether [name of plaintiff] has proven the following:
[List all factual disputes that must be resolved by the jury.]
The special [verdict/interrogatory] form will ask for your finding on
[this/these] issue[s].]
[The law [also] requires that the trial judge, rather than the jury, decide
if [name of plaintiff] has proven element 3 above, whether [name of
defendant] had reasonable grounds for bringing the earlier lawsuit
against [him/her/it]. But before I can do so, you must decide whether
[name of plaintiff] has proven the following:
[List all factual disputes that must be resolved by the jury.]
The special [verdict/interrogatory] form will ask for your finding on
[this/these] issue[s].]
New September 2003; Revised April 2008, October 2008
Directions for Use
Malicious prosecution requires that the proceeding have ended in the plaintiff’s
favor (element 2) and that the defendant did not reasonably believe that there were
any grounds (probable cause) to initiate the proceeding (element 3). Probable cause
is to be decided by the court as a matter of law. However, the jury may be required
to find some preliminary facts before the court can make its legal determination,
including facts regarding what the defendant knew or did not know at the time.
(See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 881 [254
Cal.Rptr. 336, 765 P.2d 498].) If so, include element 3 and also the bracketed part
of the instruction that refers to element 3.
Favorable termination is handled in much the same way. If a proceeding is
terminated other than on the merits, there may be disputed facts that the jury must
find in order to determine whether there has been a favorable termination. (See
Fuentes v. Berry (1995) 38 Cal.App.4th 1800, 1808 [45 Cal.Rptr.2d 848].) If so,
include element 2 and also the bracketed part of the instruction that refers to
element 2. Once these facts are determined, the jury does not then make a second
determination as to whether there has been a favorable termination. The matter is
determined by the court based on the resolution of the disputed facts. (See Sierra
Club Found. v. Graham (1999) 72 Cal.App.4th 1135, 1159 [85 Cal.Rptr.2d 726]
[element of favorable termination is for court to decide].)
Either or both of the elements of probable cause and favorable termination should
be omitted if there are no disputed facts regarding that element for the jury to
Element 4 expresses the malice requirement.
Sources and Authority
• Public Employee Immunity. Government Code section 821.6.
“Although the tort is usually called ‘malicious prosecution,’ the word
‘prosecution’ is not a particularly apt description of the underlying civil action.
The Restatement uses the term ‘wrongful use of civil proceedings’ to refer to
the tort.” (5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 486,
internal citations omitted.)
• “To establish a cause of action for the malicious prosecution of a civil
proceeding, a plaintiff must plead and prove that the prior action (1) was
commenced by or at the direction of the defendant and was pursued to a legal
termination in his, plaintiff’s, favor; (2) was brought without probable cause;
and (3) was initiated with malice.” (Bertero v. National General Corp. (1974)
13 Cal.3d 43, 50 [118 Cal.Rptr. 184, 529 P.2d 608], internal citations omitted.)
• “The remedy of a malicious prosecution action lies to recompense the defendant
who has suffered out of pocket loss in the form of attorney fees and costs, as
well as emotional distress and injury to reputation because of groundless
allegations made in pleadings which are public records.” (Sagonowsky v. More
(1998) 64 Cal.App.4th 122, 132 [75 Cal.Rptr.2d 118], internal citations
• “The malicious commencement of a civil proceeding is actionable because it
harms the individual against whom the claim is made, and also because it
threatens the efficient administration of justice. The individual is harmed
because he is compelled to defend against a fabricated claim which not only
subjects him to the panoply of psychological pressures most civil defendants
suffer, but also the additional stress of attempting to resist a suit commenced
out of spite or ill will, often magnified by slanderous allegations in the
pleadings.” (Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 59 [75 Cal.Rptr.2d 83],
internal citation omitted.)
• “[The litigation privilege of Civil Code section 47] has been interpreted to
apply to virtually all torts except malicious prosecution.” (Kimmel v. Goland
(1990) 51 Cal.3d 202, 209 [271 Cal.Rptr. 191, 793 P.2d 524].)
• “Liability for malicious prosecution is not limited to one who initiates an
action. A person who did not file a complaint may be liable for malicious
prosecution if he or she ‘instigated’ the suit or ‘participated in it at a later
time.’ ” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 873 [193 Cal.Rptr.3d
• “[A] cause of action for malicious prosecution lies when predicated on a claim
for affirmative relief asserted in a cross-pleading even though intimately related
to a cause asserted in the complaint.” (Bertero, supra, 13 Cal.3d at p. 53.)
• “A claim for malicious prosecution need not be addressed to an entire lawsuit;
it may . . . be based upon only some of the causes of action alleged in the
underlying lawsuit.” (Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP
(2010) 184 Cal.App.4th 313, 333 [109 Cal.Rptr.3d 143].)
• “[A] lawyer is not immune from liability for malicious prosecution simply
because the general area of law at issue is complex and there is no case law
with the same facts that establishes that the underlying claim was untenable.
Lawyers are charged with the responsibility of acquiring a reasonable
understanding of the law governing the claim to be alleged. That achieving such
an understanding may be more difficult in a specialized field is no defense to
alleging an objectively untenable claim.” (Franklin Mint Co.,supra, 184
Cal.App.4th at p. 346.)
• “Our repeated references in Bertero to the types of harm suffered by an
‘individual’ who is forced to defend against a baseline suit do not indicate . . .
that a malicious prosecution action can be brought only by an individual. On
the contrary, there are valid policies which would be furthered by allowing
nonindividuals to sue for malicious prosecution.” (City of Long Beach v. Bozek
(1982) 31 Cal.3d 527, 531 [183 Cal.Rptr. 86, 645 P.2d 137], reiterated on
remand from United States Supreme Court at 33 Cal.3d 727 [but holding that
public entity cannot sue for malicious prosecution].)
• “[T]he courts have refused to permit malicious prosecution claims when they
are based on a prior proceeding that is (1) less formal or unlike the process in
the superior court (i.e., a small claims hearing, an investigation or application
not resulting in a formal proceeding), (2) purely defensive in nature, or (3) a
continuation of an existing proceeding.” (Merlet, supra, 64 Cal.App.4th at p.
• “[I]t is not enough that the present plaintiff (former defendant) prevailed in the
action. The termination must ‘ “reflect on the merits,” ’ and be such that it
‘tended to indicate [the former defendant’s] innocence of or lack of
responsibility for the alleged misconduct.’ ” (Drummond v. Desmarais (2009)
176 Cal.App.4th 439, 450 [98 Cal.Rptr.3d 183], internal citations omitted.)
• “ ‘[A] voluntary dismissal on technical grounds, such as lack of jurisdiction,
laches, the statute of limitations or prematurity, does not constitute a favorable
termination because it does not reflect on the substantive merits of the
underlying claim. . . .’ ” (Drummond, supra, 176 Cal.App.4th at p. 456.)
• “[Code of Civil Procedure] Section 581c, subdivision (c) provides that where a
motion for judgment of nonsuit is granted, ‘unless the court in its order for
judgment otherwise specifies, the judgment of nonsuit operates as an
adjudication upon the merits.’ . . . [¶] We acknowledge that not every judgment
of nonsuit should be grounds for a subsequent malicious prosecution action.
Some will be purely technical or procedural and will not reflect the merits of
the action. In such cases, trial courts should exercise their discretion to specify
that the judgment of nonsuit shall not operate as an adjudication upon the
merits.” (Nunez, supra, 241 Cal.App.4th at p. 874.)
• “[A] malicious prosecution plaintiff is not precluded from establishing favorable
termination where severable claims are adjudicated in his or her favor.” (Sierra
Club Found., supra, 72 Cal.App.4th at p. 1153, internal citation omitted.)
• “ ‘ “A voluntary dismissal may be an implicit concession that the dismissing
party cannot maintain the action and may constitute a decision on the merits.
[Citations.] ‘It is not enough, however, merely to show that the proceeding was
dismissed.’ [Citation.] The reasons for the dismissal of the action must be
examined to determine whether the termination reflected on the merits.”
[Citations.]’ Whether that dismissal is a favorable termination for purposes of a
malicious prosecution claim depends on whether the dismissal of the [earlier]
Lawsuit is considered to be on the merits reflecting [plaintiff’s ‘innocence’ of
the misconduct alleged.” (JSJ Limited Partnership v. Mehrban (2012) 205
Cal.App.4th 1512, 1524 [141 Cal.Rptr.3d 338], internal citations omitted.)
• “If a conflict arises as to the circumstances explaining a failure to prosecute an
action further, the determination of the reasons underlying the dismissal is a
question of fact.” (Fuentes, supra, 38 Cal.App.4th at p. 1808, internal citations
• “[W]hen a dismissal results from negotiation, settlement, or consent, a favorable
termination is normally not recognized. Under these latter circumstances, the
dismissal reflects ambiguously on the merits of the action.” (Weaver v. Superior
Court (1979) 95 Cal.App.3d 166, 184–185 [156 Cal.Rptr. 745], internal
citations omitted, disapproved on other grounds in Sheldon Appel Co., supra, 47
Cal.3d at p. 882.)
• “Not every case in which a terminating sanctions motion is granted necessarily
results in a ‘favorable termination.’ But where the record from the underlying
action is devoid of any attempt during discovery to substantiate allegations in
the complaint, and the court’s dismissal is justified by the plaintiff’s lack of
evidence to submit the case to a jury at trial, a prima facie showing of facts
sufficient to satisfy the ‘favorable termination’ element of a malicious
prosecution claim is established . . . .” (Daniels v. Robbins (2010) 182
Cal.App.4th 204, 219 [105 Cal.Rptr.3d 683].)
• “[T]he existence or absence of probable cause has traditionally been viewed as
a question of law to be determined by the court, rather than a question of fact
for the jury . . . . [¶] [It] requires a sensitive evaluation of legal principles and
precedents, a task generally beyond the ken of lay jurors . . . .” (Sheldon Appel
Co., supra, 47 Cal.3d at p. 875.)
• “When there is a dispute as to the state of the defendant’s knowledge and the
existence of probable cause turns on resolution of that dispute, . . . the jury
must resolve the threshold question of the defendant’s factual knowledge or
belief. Thus, when . . . there is evidence that the defendant may have known
that the factual allegations on which his action depended were untrue, the jury
must determine what facts the defendant knew before the trial court can
determine the legal question whether such facts constituted probable cause to
institute the challenged proceeding.” (Sheldon Appel Co., supra, 47 Cal.3d at p.
881, internal citations omitted.)
• “Whereas the malice element is directly concerned with the subjective mental
state of the defendant in instituting the prior action, the probable cause element
calls on the trial court to make an objective determination of the
‘reasonableness’ of the defendant’s conduct, i.e., to determine whether, on the
basis of the facts known to the defendant, the institution of the prior action was
legally tenable.” (Sheldon Appel Co., supra, 47 Cal.3d at p. 878, original
• “ ‘The benchmark for legal tenability is whether any reasonable attorney would
have thought the claim was tenable. [Citation.]’ ” (Oviedo v. Windsor Twelve
Properties, LLC (2012) 212 Cal.App.4th 97, 114 [151 Cal.Rptr.3d 117], internal
citation omitted.)
• “ ‘The facts to be analyzed for probable cause are those known to the defendant
[in the malicious prosecution action] at the time the underlying action was
filed.’ ” (Walsh v. Bronson (1988) 200 Cal.App.3d 259, 264 [245 Cal.Rptr. 888],
internal citations omitted.)
• “A litigant will lack probable cause for his action either if he relies upon facts
which he has no reasonable cause to believe to be true, or if he seeks recovery
upon a legal theory which is untenable under the facts known to him.” (Soukup
v. Law Offıces of Herbert Hafif (2006) 39 Cal.4th 260, 292 [46 Cal.Rptr.3d 638,
139 P.3d 30].)
• “[W]e reject their contention that unpled hidden theories of liability are
sufficient to create probable cause.” (Jay v. Mahaffey (2013) 218 Cal.App.4th
1522, 1542 [161 Cal.Rptr.3d 700].)
• “Certain nonfinal rulings on the merits may serve as the basis for concluding
that there was probable cause for prosecuting the underlying case on which a
subsequent malicious prosecution action is based. This is based on the notion
that ‘[c]laims that have succeeded at a hearing on the merits, even if that result
is subsequently reversed by the trial or appellate court, are not so lacking in
potential merit that a reasonable attorney or litigant would necessarily have
recognized their frivolousness.’ Thus, for instance, the denial of a nonsuit
motion and a subsequent plaintiff’s jury verdict has been found sufficient to
constitute probable cause, even though the trial court or appellate court later
reverses that verdict. Similarly, the denial of a defense summary judgment
motion ‘normally establishes there was probable cause to sue, thus barring a
later malicious prosecution suit.’ ” (Yee v. Cheung (2013) 220 Cal.App.4th 184,
200–201 [162 Cal.Rptr.3d 851], internal citations omitted.)
• “California courts have held that victory at trial, though reversed on appeal,
conclusively establishes probable cause.” (Roberts v. Sentry Life Insurance
(1999) 76 Cal.App.4th 375, 383 [90 Cal.Rptr.2d 408], original italics.)
• “ ‘[T]here may be situations where denial of summary judgment should not
irrefutably establish probable cause. For example, if denial of summary
judgment was induced by materially false facts submitted in opposition,
equating denial with probable cause might be wrong. Summary judgment might
have been granted but for the false evidence.’ ” (Antounian v. Louis Vuitton
Malletier (2010) 189 Cal.App.4th 438, 451 [117 Cal.Rptr.3d 3].)
• “[T]he fraud exception requires ‘ “knowing use of false and perjured
testimony.” ’ ” (Antounian, supra, 189 Cal.App.4th at p. 452.)
• “Probable cause may be present even where a suit lacks merit. . . . Suits which
all reasonable lawyers agree totally lack merit—that is, those which lack
probable cause—are the least meritorious of all meritless suits. Only this
subgroup of meritless suits present[s] no probable cause.” (Roberts, supra, 76
Cal.App.4th at p. 382.)
• “[A]n attorney may be held liable for malicious prosecution for continuing to
prosecute a lawsuit discovered to lack probable cause.” (Zamos v. Stroud (2004)
32 Cal.4th 958, 970 [12 Cal.Rptr.3d 54, 87 P.3d 802].)
• “[W]here several claims are advanced in the underlying action, each must be
based on probable cause.” (Lanz v. Goldstone (2015) 243 Cal.App.4th 441, 459
[197 Cal.Rptr.3d 227].)
• “As an element of the tort of malicious prosecution, malice at its core refers to
an improper motive for bringing the prior action. As an element of liability it
reflects the core function of the tort, which is to secure compensation for harm
inflicted by misusing the judicial system, i.e., using it for something other than
to enforce legitimate rights and secure remedies to which the claimant may
tenably claim an entitlement. Thus the cases speak of malice as being present
when a suit is actuated by hostility or ill will, or for some purpose other than to
secure relief. It is also said that a plaintiff acts with malice when he asserts a
claim with knowledge of its falsity, because one who seeks to establish such a
claim ‘can only be motivated by an improper purpose.’ A lack of probable
cause will therefore support an inference of malice.” (Drummond, supra, 176
Cal.App.4th at pp. 451–452, original italics, internal citations omitted.)
• “A lack of probable cause is a factor that may be considered in determining if
the claim was prosecuted with malice [citation], but the lack of probable cause
must be supplemented by other, additional evidence.” (Silas v. Arden (2013) 213
Cal.App.4th 75, 90 [152 Cal.Rptr.3d 255].)
• “Because malice concerns the former plaintiff’s actual mental state, it
necessarily presents a question of fact.” (Drummond, supra, 176 Cal.App.4th at
p. 452.)
• “Negligence does not equate with malice. Nor does the negligent filing of a
case necessarily constitute the malicious prosecution of that case.” (Grindle v.
Lorbeer (1987) 196 Cal.App.3d 1461, 1468 [242 Cal.Rptr. 562].)
• “The motive of the defendant must have been something other than that of
bringing a perceived guilty person to justice or the satisfaction in a civil action
of some personal or financial purpose.” (Downey Venture v. LMI Insurance Co.
(1998) 66 Cal.App.4th 478, 494 [78 Cal.Rptr.2d 142], internal citations
• “Malice does not require that the defendants harbor actual ill will toward the
plaintiff in the malicious prosecution case, and liability attaches to attitudes that
range ‘ “from open hostility to indifference. [Citations.]” ’ ” (Cole v. Patricia A.
Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, 1113–1114 [142
Cal.Rptr.3d 646], internal citations omitted.)
• “ ‘Suits with the hallmark of an improper purpose’ include, but are not
necessarily limited to, ‘those in which: “ ‘. . . (1) the person initiating them
does not believe that his claim may be held valid; (2) the proceedings are begun
primarily because of hostility or ill will; (3) the proceedings are initiated solely
for the purpose of depriving the person against whom they are initiated of a
beneficial use of his property; (4) the proceedings are initiated for the purpose
of forcing a settlement which has no relation to the merits of the claim.’ ” ’
[Citation.] [¶] Evidence tending to show that the defendants did not subjectively
believe that the action was tenable is relevant to whether an action was
instituted or maintained with malice. [Citation.]’ ” (Oviedo,supra, 212
Cal.App.4th at pp. 113–114.)
• “Although Zamos [supra] did not explicitly address the malice element of a
malicious prosecution case, its holding and reasoning compel us to conclude
that malice formed after the filing of a complaint is actionable.” (Daniels,
supra, 182 Cal.App.4th at p. 226.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 471, 474, 477–484,
Ahart, California Practice Guide: Enforcing Judgments & Debts, Ch. 2-C, Liability
For Unfair Collection Practices—Tort Liability, ¶ 2:455 (The Rutter Group)
4 Levy et al., California Torts, Ch. 43, Malicious Prosecution and Abuse of
Process, §§ 43.01–43.06 (Matthew Bender)
31 California Forms of Pleading and Practice, Ch. 357, Malicious Prosecution and
Abuse of Process, §§ 357.10–357.32 (Matthew Bender)
14 California Points and Authorities, Ch. 147, Malicious Prosecution and Abuse of
Process, §§ 147.20–147.53 (Matthew Bender)